The Electronic Communications Code 2017 (the Code) applies across the whole of the UK and it is therefore an area where English real estate case law can also be relevant in Scotland. In the recent English case of Evolution (Shinfield) LLP v. British Telecommunications Plc  UKUT 127 (LC) the Upper Tribunal (UT) considered whether or not paragraph 38 of the Code could be used by a developer to require an operator, at the operator's own cost, to remove its electronic communications apparatus (ECA) from neighbouring land to enable construction of a new access route to the development site. The UT concluded that paragraph 38 could not be used in this way.
The case concerned a site near Reading which had the benefit of a 2012 planning permission for 1,200 homes. As part of the development, the developer needed to create a new access route onto the public highway across neighbouring land. Unfortunately, part of that proposed route was occupied by a cabinet containing ECA owned by an operator.
The developer argued that, pursuant to paragraph 38 of the Code, it could require the operator to remove its ECA at the operator's own cost to enable the new access route to be built. Paragraph 38 provides:
"A landowner or occupier of any land ('neighbouring land') has the right to require removal of [ECA] kept on, under or over other land...if both of the following conditions are met:
- The first condition is that the apparatus interferes with or obstructs a means of access to or from the neighbouring land
- The second condition is that the landowner or occupier of the neighbouring land is not bound by a code right...entitling an operator to cause the interference or obstruction."
The developer argued that "a means of access" was not confined to access routes that existed at the time the ECA was installed, but instead extended to any identified, implementable access or route. In this case, at the time the relevant ECA was installed, the proposed new access route was identifiable (though not fully constructed) and, therefore, the developer argued that paragraph 38 was engaged.
The UT did not agree. It felt that the wording referred to "an existing means of access, rather than something potential". Further, the UT did not see the need "to read the choice of words as implying an extension of the right to cover an inchoate route which did not exist and was not obstructed when the apparatus was installed".
As such, paragraph 38 of the Code was not engaged and the developer could not use it as a means of forcing the operator to pay for the cost (approximately £300,000) of removing the ECA.
This case is a useful reminder that, when you are dealing with development sites, you need to identify early on any ECA which may be protected by the Code and ensure that a suitable strategy is put in place for dealing with it as part of the development. The fallback position should be to assume that, if ECA is to be moved, it will be the developer/landowner that will have to pay for it and therefore this should be factored into the development costs.
It is worth noting that the position would have been the same under the old Electronic Communications Code (pre-28 December 2017). Given the purported purpose of the new Code – "to improve electronic communications services for the benefit of the public by accelerating and simplifying procedures for installing and retaining infrastructure by operators" – it would have been a surprise had the UT decided that the new Code meant that developers could, in order to facilitate development, require operators to remove their apparatus at the operators' expense when no such right existed under the old code.
The decision does, however, underline the need for contractual "lift and shift" provisions (with suitable allocation of costs) in new Code agreements. The old code contained statutory "lift and shift" provisions which, subject to satisfaction of various conditions, could be invoked at any time in order to facilitate development and which (while a developer had to cover the operator's relocation costs) provided a useful fallback tool in the absence of any contractual relocation rights. The new Code contains no such rights (paragraph 38 being a limited right of removal of ECA which interferes with or obstructs an existing access, as confirmed in this case), meaning that any such provisions will have to be agreed contractually between the parties. While in this case the ECA was situated on neighbouring land, assuming the contracting landowner was prepared to co-operate, if it had a "lift and shift" clause in its agreement with the operator, this could have provided another route for seeking the relocation of the ECA.
Note: This article is based on an article written by Emma Broad and Ben Battell in May 2019. You might also be interested in this article which describes an English case which considers the ability of landowners to resist the imposition of rights pursuant to the new Code where they intend to redevelop their land. This case would also be relevant in Scotland.
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